Carrying the torch in times of darkness

Wojciech Wiewiórowski

The outbreak of Covid-19 is affecting our lives at an unprecedented pace. It is testing the resilience of our societies as we respond to this global crisis and try to contain its consequences, both in the short and in the long run.

Personal data have and will continue to play an important role in the fight against the pandemic. Our laws, such as the GDPR and the e-Privacy rules, allow for the processing of personal data for public health purposes, including in times of emergency. Data protection laws is well-equipped to help support the public good and does do not represent an obstacle in fighting the virus.

Humanity does not need to commit to a trade-off between privacy and data protection from one side, and public health, on the other. Democracies in the age of Covid-19 must and can have them both.

Against this background, here are a few reflections to feed future deliberations.

Mind the endemic in times of pandemic

The pandemic has not thrown into oblivion or completely undone what we had before the outbreak of the crisis.

Take into consideration, for example, the predominant business model of the digital economy, based on endemic tracking. As EDPS, we have been vocal on how it has been putting our rights and freedoms under huge strain.

Unless Big Tech makes a U-turn, some trends in the digital economy will even be amplified during and in the aftermath of the crisis: imbalance of power and information between a handful of powerful players and the people; insufficient transparency and accountability; growing inequality in the distribution of value; and role of platforms as gatekeepers for solutions, choice, and innovation. Not to mention cybersecurity incidents and disinformation campaigns.

As we discuss digital solutions to manage the pandemic, and we subject them to public and democratic debate, we shall keep sight of the endemic problems of the digital ecosystem and have them subject to democratic oversight and deliberations.

Regulators’ scrutiny must remain high and grow in foresight.

Draw the line where it must be drawn

It is certainly possible to build technological solutions which are compliant with the legal data protection framework.  Some recent proposals show that societies can take up technologies while upholding privacy and data protection rights.

Nevertheless, even in a legally compliant approach, some questions remain open. Addressing them will be as crucial as developing technical solutions preserving privacy. First and foremost, for how long will those measures be applied and for how long will this enhanced intrusion in our basic rights and freedoms last? Furthermore, with some data might being transmitted to a wide range of stakeholders, for example in public-private partnerships, we must reflect further on the re-use of data for public good or on what shall we even mean by “public good” itself.
Where to draw the line - in times of emergencies - can be prescribed by the law, but it definitely implies answering prominent ethical questions, in particular where we wish to head to as democratic societies, based on the rule of law.

The rights we discuss are permeated by ethical considerations. In their relationship with the preservation of human dignity and the values our societies are built on, privacy and data protection are inherently ethical.  

Democracies in the age of Covid-19 should only consider and make use of those measures which respect the very legal essence and ethical need of privacy and data protection.

Craft a brave new, sustainable, “normal”

The measures imposed by the crisis have already impacted our society, our economy and our environment. Exiting strategies and de-confinement actions will also lead to a new normal.

It is hard to predict how a balance will be achieved, between ensuring everyone’s safety and guaranteeing the world a new start.

From many perspectives, humanity has a unique opportunity to rethink models in use before.

There is a dramatic need for the new normal to be truly sustainable. Applied to the digital dimension, it means achieving balanced green digital solutions, based on equality and values, without hindering the choices and opportunities of the next generations.

Covid-19 will only be a game-changer if we now address the growing inequalities in value creation and distribution, the digital dividend, online unfair treatment, and discrimination, especially of vulnerable groups. We cannot afford any further postponement.  

The aftermath pandemic will be a test for our civilisation. The EDPS is planning to undertake a careful analysis of longer-term implications of this pandemic for our fundamental rights and freedoms, to be finalised by the end of the year.